interests (which the Bank undoubtedly will tender) instead of a ratable share in cash after expenses under the Termination Plan. Whether dismissal of Count I is proper, however, depends on where, along Posner's "mootness continuum," this case falls. This depends on the essence of the ERISA claims and whether the "difference" resulting from the injunction will be so little that judicial economy and the policies underlying Article III dictate dismissal of Count I as moot.
The defendants urge that Count I: (1) impermissibly seeks an advisory opinion regarding the Bank's exercise of its fiduciary duty in satisfying the withdrawal requests; (2) fails to state a claim against the defendants for breach of a fiduciary duty under ERISA; and (3) cannot state a claim for violation of OCC regulations. They contend the Bank actually seeks a preliminary approval of its redemption scheme (approval which the OCC refused to give) and, in effect, a declaration of nonliability for any future alleged breach of the Bank's fiduciary duties in satisfying the matured withdrawal requests. Although the history of this case makes it more likely than not that the Bank filed suit with this motive in mind, this Court still must ask whether the Bank has stated a federal cause of action so that this Court can exercise jurisdiction over the matter.
The Bank alleges in its complaint that subject matter jurisdiction (except as to the State Board and Illinois Municipal Retirement Fund) is predicated on 29 U.S.C. §§ 1104 and 1105, 28 U.S.C. § 2201, and 28 U.S.C. § 1331. The defendants correctly point out that none of these statutory sections provide a federal private cause of action. Sections 1104 and 1105 define a fiduciary's standard of care and duty to police breaches by co-fiduciaries. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145-48, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (1985) (ERISA's fiduciary duty provisions do not give rise to an implied right of action beyond those created in § 1132). Section 2201 is the Declaratory Judgment Act which only affords an additional form of relief and does not confer subject matter jurisdiction. Lawline v. American Bar Ass'n, 956 F.2d 1378, 1387 (7th Cir. 1992). Finally, section 1331 simply declares that claims arising under federal law may be brought in federal court without regard to the citizenship of the parties or the amount in controversy. 28 U.S.C. § 1331 (1991).
This Court can exercise subject matter jurisdiction here if the complaint states a claim under ERISA. 29 U.S.C. § 1132(e)(1) (1988). Section 1132 provides the exclusive mechanism for civil enforcement of ERISA's substantive obligations. 29 U.S.C. § 1132(a) (1988); Russell, 473 U.S. at 145-58; Giardono v. Jones, 867 F.2d 409, 413 (7th Cir. 1989). The Bank's failure to cite § 1132 in its complaint is not fatal to its ability to assert a private cause of action under ERISA. The common law "form of action" pleading and code pleading were abandoned long ago in favor of a "new, latitudinarian approach." Bartholet v. Reishauer A. G., 953 F.2d 1073, 1078 (7th Cir. 1992). Today a complaint filed in federal court need not identify the appropriate statute or even the appropriate legal theory to survive a motion to dismiss. Id. Instead what it must do is plead a "claim for relief," and what this Court must determine is "whether relief is possible under any set of facts that could be established consistent with the allegations" in the complaint. Id. In turn, this Court must accept as true all well-pleaded factual allegations in the complaint, along with all reasonable inferences drawn in favor of the plaintiff, and dismiss the complaint only if it is beyond doubt that the Bank can prove no set of facts in support of its ERISA claims that will entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
The Bank, as a fiduciary, can bring a claim under sections 1132(a)(2) and 1132(a)(3). Section 1132(a)(2) provides a cause of action for "appropriate relief under section 1109," i.e., liability for breach of fiduciary duty. Suits for breach of fiduciary duty are permitted only against persons who act as a fiduciary with respect to a plan or trust covered by ERISA. Brandt v. Grounds, 687 F.2d 895, 897 (7th Cir. 1982) (quoting 29 C.F.R. § 2509.75-8 (FR-16A)). A person acts as a fiduciary "to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or respecting management or disposition of its assets, . . . or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U.S.C. § 1002(21)(A) (1988). In essence, "ERISA makes the existence of discretion a sine qua non of fiduciary duty." Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 129 (7th Cir. 1992); Associates in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 568-69 (7th Cir. 1991); Leigh v. Engle, 727 F.2d 113, 133 (7th Cir. 1984) (fiduciary obligation is limited to extent of actual authority) (quoting ERISA Interpretative Bulletin 75-8, 29 C.F.R. § 2509.75-8).
Whether a person (or entity in this case) qualifies as a fiduciary within the meaning of ERISA is a question of law. United Indep. Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1266 n.6 (7th Cir. 1985). The defendant plans argue that they have no discretion to manage, control, or dispose of Fund F assets and, therefore, neither qualify as "fiduciaries" nor have any fiduciary duty with respect to Fund F assets under 29 U.S.C. §§ 1104(a)(1)(D) and 1002(21). The Ninth Circuit in Acosta v. Pacific Enters., 950 F.2d 611 (9th Cir. 1992), held that a plan (as an entity) cannot be sued for breach of fiduciary duty because it cannot, as an entity, act as a fiduciary with respect to its own assets. Id. at 618.
While it is difficult to envision a situation in which a plan (not its administrators) could act as a fiduciary, this Court need not decide whether a plan can or cannot act as a fiduciary within the meaning of ERISA.
Even assuming a plan can act as a fiduciary, I find that the defendant plans in this case are not fiduciaries with respect to the management, control or administration of Fund F assets. The Trust Instrument vests the Bank with exclusive power to manage and control Fund F assets. The defendant plans, having no discretion to manage and control Fund F assets, have no fiduciary obligation with respect to the management and control of Fund F assets.
The Bank still insists that the Trust Instrument and OCC regulations impose a duty on the defendants to accept the proposed fractional interests in Fund F real property. Implicitly, the Bank argues that the defendant plans, which includes its administrators,
are fiduciaries by virtue of its discretion to administer, manage, and control their respective plans and that the plan administrators breached their fiduciary duty under § 1104 by not administering the plan "in accordance with the documents and instruments governing the plan." 29 U.S.C. § 1104(a)(1) (1988). Even if the plans are fiduciaries with respect to the administration or management of their plans, their obligations as fiduciaries "pertain only to the discretion thus created." Associates in Adolescent Psychiatry, 941 F.2d at 569. The Bank contends that the plans had no discretion to reject the proposed distribution and must accept the fractional interests. If such a duty to accept the fractional interests exists, it is contractual or regulatory and not "fiduciary." The Bank, therefore, has not properly pleaded a claim for breach of fiduciary duty under § 1132(a)(2).
Essentially, what the Bank argues is not that it states a claim under § 1132(a)(2), but that it states a claim under § 1132(a)(3). Under this subsection, fiduciaries can sue "(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3) (1988). Section l132(d)(1) specifically provides that an employee benefit plan may be sued as an entity under this subchapter, and the viability of a suit under § 1132(a)(2) does not depend on the defendants' status as fiduciaries. Winstead v. J. C. Penney Co., Inc., 933 F.2d 576, 579 (7th Cir. 1991). Furthermore, this section permits a fiduciary to enforce what it considers to be "the requirements of ERISA and the agreement of the parties formulated in the Plan itself." Saramar Aluminum Co. v. Pension Plan for Employees of the Aluminum Indus. & Allied Indus., 782 F.2d 577, 581 (6th Cir. 1986);
Winstead, 933 F.2d at 579 (complaint stated a claim under § 1132(a)(3)(B) for a declaratory judgment to enforce the coordination-of-benefits provision of the Central States plan).
The Bank here has filed suit to enforce what it considers to be the requirements of the Trust Instrument and OCC regulations. The Trust Instrument and OCC regulations are incorporated into each participating ERISA plan. A suit to enforce the Trust Instrument and OCC regulations, therefore, is a suit to enforce the terms of the ERISA plans themselves. Accordingly, this suit falls squarely within the literal terms of 29 U.S.C. § 1132(a)(3), and this Court has exclusive jurisdiction over the matter under 29 U.S.C. § 1132(e)(1). The exercise of subject matter jurisdiction over this case would promote the "goals of ERISA and, more broadly,  facilitate the expeditious and economical administration of justice." Winstead, 933 F.2d at 579. The defendant plans' motion to dismiss Count I (and Count III) as moot or for failure to state a claim is denied.
Finally, the defendants insist that if any claim survives their motions to dismiss, this Court should order the Bank pursuant to Rule 19(a) to join the non-withdrawing plans whose interests will be affected by the distribution of fractional shares in the real estate held by Fund F. Joinder of the non-withdrawing plans is feasible. The dispute here concerns whether joinder is necessary because the non-withdrawing plans have "an interest relating to the subject of the action and . . . the disposition of the action in their absence may  as a practical matter impair or impede their ability to protect that interest." FED. R. CIV. P. 19(a). This interest must be a "legally protected interest [in the subject of the action], and not merely a financial interest or interest of convenience." 3A MOORE'S FEDERAL PRACTICE P 19.07, at 19-99 (2d ed. 1992).
In a sense, the non-withdrawing plans have a financial interest in the outcome of this litigation; the Bank wants an injunction ordering distribution of fractional interests in Fund F real estate held in trust for the benefit of all participating plans. This interest in Fund F real estate, likewise, is legally cognizable by virtue of the Trust Instrument, just as the interest of parties to a contract involving land. See Naartex Consulting Corp. v. Watt, 232 U.S. App. D.C. 293, 722 F.2d 779, 788 (D.C. Cir. 1983) ("an action seeking rescission of a contract must be dismissed unless all parties to the contract, and others having a substantial interest in it, can be joined"). The difficulty in this case is that the "subject" of this action does not encompass all Fund F real estate, rather only those fractional interests in real estate rejected and now held in the "Interim Liquidation Account" pursuant to the Termination Plan. The non-withdrawing plans have a legally cognizable interest only in the Fund F real estate being held in the "Fund F Liquidating Account," which excludes "the Redeemed Former Participants' rejected fractional interests" and which is being sold "as soon as feasible and prudent" with periodical and ratable distributions of cash available after expenses. Accordingly, this Court finds that the non-withdrawing participants need not be joined under Rule 19(a).
In sum, the motion to dismiss Counts I and III is denied. Count II is dismissed as moot. The State Board's motion to dismiss is granted. Finally, the defendants' request for an order requiring joinder of the non-withdrawing plans as defendants is denied.
James B. Zagel
United States District Judge
Date: 30 Dec. 1993